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USMC | DRB | 2012_Marine | MD1200178
Original file (MD1200178.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20111028
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20050706 - 20050731     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050801     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080930      H ighest Rank:
Length of Service : Y ea rs M on ths 00 D a ys
Education Level:        AFQT: 59
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle EX (2) , CAR , SSDR , ICM (2) , GWOTSM , NDSM

Periods of UA / CONF :

NJP:

- 20080628 :      Article 128 (Assault, punching a lance corporal in the face and subsequently knocking two teeth out)
         Article 134 (General Article, drunk and disorderly)
         Awarded: RIR , FOP , RESTR EPD , vacated suspended Ad Sep OTH                Suspended:

SCM: NONE                 SPCM:            CC:

Retention Warning Counseling : 1

- NFIR :   For assault and disorderly conduct .

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ GKK1 ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.






Types of Documents Submitted/reviewed

 Related to Military Service:
         DD 214:            Service/ Medical Record:            Other Records:   

Related to Post-Service Period:
         Employment:               Finances:                 Education/Training:     
         Health/Medical Records:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

Pertinent Regulation/Law

 A. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 6210, MISCONDUCT .
B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .



DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       The Applicant seeks an upgrade for VA benefits.
 2 .       The Applicant contends he never knowingly ingested any illegal drug into his system.
 3 .       The Applicant contends he was not permitted to face his drug abuse charge at S pecial C ourt- M artial.
4 .       The Applicant contends his honorable service outweighs his misconduct.
 5 .       The Applicant believes his post-service conduct is worthy of consideration.

Decision

 Date : 20 1 2 0802            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
Discussion

 The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included one 6105 counseling warning and one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 128 (Assault, punching a lance corporal in the face and subsequently knocking two teeth out) and Article 134 (General Article, drunk and disorderly). He also had one positive urinalysis test result for wrongful use of Cocaine, 368 ng/ml . The Applicant did not have a pre-service drug waiver for using illicit drugs prior to entering the Marine Corps. Based on the Article 112a violation (Wrongful use, possession, etc. of a controlled substance) , processing for administrative separation is mandatory. He refused NJP for violation of A rticle 112a . When notified of administrative separation processing using the administrative board procedure, the Applicant exercised his rights to consult with a qualified counsel, submit a written statement , and request an administrative board. The Administrative Separation Board voted unanimously to recommend that the Applicant be separated by reason of Misconduct due to D rug A buse and that he receive an Under Other Than Honorable Conditions character of service. The b oard also voted to recommend that the separation be suspended for one year. The Separati on Authority concurred with the b oard’s recommendations , and the discharge was suspended for 12 months . During the period of suspension, t he Applicant was the subject of NJP for violation of UCMJ Article 128 and Article 134 . The Applicant was found guilty at NJP , and the suspended a dministrative s eparation was summarily vacated.

: (Nondecisional) The Applicant seeks an upgrade for VA benefits . There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.
: (Decisional) ( ) . The Applicant contends he never knowingly ingested cocaine into his system. The Applicant contends his discharge was improper due to false results, but he did not provide any documentation to support his contention. The Navy Drug Screening Laboratory goes through a very thorough four-level analysis procedure, which includes immunoassay and gas chromatography/mass spectrometry testing, to accurately test all specimens, ensuring each positive sample is screened, re-screened, confirmed, and all procedures have been followed before a message is released. All three tests (screen, re-screen, and confirmation) must be positive before a positive result is reported to the command. The minimum cut off for a positive result for cocaine is 100 ng/ml. The Applicant’s positive cocaine result was 386 ng/ml and well above the minimum required for a positive result. After carefully reviewing the Applicant’s documentation, the NDRB determined it was not sufficient to prove his urinalysis results were false. Additionally, there was no documentation or evidence that the Applicant did not wrongfully ingest the cocaine. Relief denied.



: (Decisional) ( ) . The Applicant contends he was not permitted to face his drug abuse charge at S pecial C ourt- M artial. In accordance with the Marine Corps Separation and Retirement Manual, servicemembers may be separated based on the commission of a serious military or civilian offense when the commanding officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense. A violation of Article 112a is considered to be a serious offense under the UCMJ. Commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings or civilian conviction, however, the offense must be substantiated by a preponderance of evidence. The statements and documents provided by the Applicant do not refute the presumption of regularity in this case. A servicemember’s request to go to court-martial does not obligate the commanding officer to hold the court-martial. The command decided to administratively separate the Applicant instead of going to court-martial. None of his Constitutional rights were violated, because he was not punitively discharged. Rather, he was administratively separated. The Applicant was provided the opportunity to present his case before an Administrative Separation B oard and was represented by counsel. The board found that a preponderance of the evidence showed that the Applicant committed the misconduct and recommended he be administratively separated with a n Under Other Than Honorable Conditions discharge but suspended the discharge for 12 months. The Applicant then violated Article 128 (Assault) and Article 134 (General Article, drunk and disorderly) at which time the suspended discharge was vacated , and he was administratively separated. Relief denied.

4 : (Decisional) ( ) . The Applicant contends his honorable service outweighs his misconduct. Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted. Relief denied.

5: (Decisional) ( ) . The Applicant contends his post-service conduct is worthy of consideration. The Applicant provided documentation that he has sought college education , has been awarded an Associate of Applied Science degree with a GPA of 3.89 , and is currently employed . The NDRB considers outstanding post-service conduct to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. The Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and UCMJ violations. Relief denied.
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum for additional information.


ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. There are veterans organizations such as the American Legion and the Disable d American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review.
Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

 Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the BCNR can make changes to reenlistment codes. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.
Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD ): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

 Secretary of the Navy Council of Review Boards
 Attn: Naval Discharge Review Board
 720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023

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